February 28, 2012

In a 16-page decision issued Tuesday, U.S. District Judge Ricardo Urbina sided partially with Tarek Reed, whose father was abducted, held and tortured by Lebanese terrorists over the course of three years. The judge ordered Iran to pay $4.3 million, plus interest, because of the government's support for Hezbollah, whose operatives conducted the kidnapping.

In a heart-rending recitation of facts, Judge Urbina recounted how Reed was six years old when his father was kidnapped in 1986. Writes the judge:

"The gunmen abducted Reed and threw him into the back of a car, where he was driven to a hideout andsubsequently held in captivity for the next several years. Immediately after his abduction, Reed’s captors repeatedly interrogated and beat him, demanding to know if he was an agent of the Central Intelligence Agency. During the following 1,330 days, Reed was subjected to routine torture. Reed was kept in shackles and confined in a cell that was so small that he could not stand upright...Reed was forced to wear a blindfold for so long that he suffered numerous eye infections. Id. He was subjected to electrocution, arsenic poisoning and countless beatings. Nevertheless, Reed’s greatest dread – in his words, "the worst thing that could happen to a man" – was the fear of dying alone."

February 27, 2012

A #war powers challenge to the #Obama team's #Libya military campaign has failed; because, a judge says, the campaign is over.

In the latest in a long series of failed War Powers Resolution challenges, U.S. District Judge Richard W. Roberts on Monday dismissed as moot a case that claimed the Libyan campaign was illegal. The plaintiff, San Diego resident Mark Whitney, had sought to stop the U.S. participation in the air assault on Libyan forces; an assault called "Operation Unified Protector" by the United Nations.

Judge Roberts, though, accepted the administration's argument that:

"following the death of [Libyan leader] Muammar Qaddafi and the defeat of Qaddafi-regime forces on October 23, the [U.S.] ceased air operations in support of Operation Unified Protector on October 31. The U.S. military personnel remaining in Libya are there to support the diplomatic mission."

Much the same thing happened when congressional Democrats challenged the Reagan administration's October 1983 invasion of Grenada. The judge noted that Reagan had withdrawn all combat troops by that Dec. 15, while leaving behind some "300 United States military personnel...to maintain order and assist in training the Grenadian police force." The "mere presence" of military personnel, under peaceful circumstances, is not enough to keep a war powers case alive, the judge reasoned.

In a 13-page ruling, U.S. District Judge Royce Lamberth rejected bid by Charter Operators of Alaska and others to block the "limited access system." Judge Lamberth explained, in part, that:

"Merely highlighting the fact that the Final Rule will cause some charter operations to suffer adverse economic impacts is not sufficient for this Court to find the agency acted in an arbitrary and capricious manner."

"Mr. X's body of tweets is extremely crude and in almost incomprehensibly poor taste...the page is entirely without merit, comedic or otherwise. More offensive even than Mr. X's chosen vocabulary is the pathetic transparency and vapidity of his attempt to elicit the attention on the Internet that he surely lacks in real life."

"I want to (blank) Michelle Bachmann in her (blank) with a Vietnam era machete."

Prosecutors, apparently, consider this a potential threat against the member of Congress. Judge Lamberth, saying that "readers deserve an honest assessment of Mr. X's Twitter page without having to debase themselves by viewing it personally," quotes verbatim a number of other, similarly toned tweets.

Intriguingly, Judge Lamberth, even as he allows the subpoenas to go forward, said he has "grave doubts" about the likelihood of an indictment. After all, he says:

"There appears to be nothing serious whatsoever about Mr. X's Twitter page, except perhaps the severity of the mental depravity that would lead a person to produce such posts."

Mr. Dupree, a CIA employee since 1976, worked for what's called the CIA's Transportation Support Center; he was subsequently convicted of driving under the influence. But now, the CIA has succeeded in getting itself dropped from the case, on the basis that Dupree's accident happened outside the scope of his Agency employment.

The woman injured in the Sept. 10, 2008 accident, Chantel Russell, and State Farm Insurance, had both gone after the CIA. Judge Amy Berman Jackson, though, concluded that:

"No reasonable juror could find that Dupree’s conduct was actuated in any part by a purpose to serve his employer. Dupree was acting solely for personal benefit when he drove home at night from a restaurantunder the influence of alcohol."

February 17, 2012

#Law schools face an #age #bias case brought by Nicholas Spaeth, a remarkably accomplished attorney who turns 62 this year. In a decision Friday, U.S. District Judge Ellen Segal Huvelle rejected efforts by the schools to dismiss the case altogether, but agreed that it will be severed into separate cases involving the individual schools.

During the 2010 hiring season, while Mr. Spaeth was a visiting professor at the University of Missouri, he went through the job application process but received no job offers. Instead, he alleged that Missouri, U.C. Hastings, Iowa and other schools hired younger, lesser-qualified individuals.

He definitely has qualifications, including graduation from Stanford Law School, study as a Rhodes Scholar, service as a Supreme Court clerk and a stint as North Dakota attorney general.

He sued the schools, en masse.

Reasoned Judge Huvelle, as she split up the case to be decided in four separate home-state courts:

"Unless Spaeth’s claims are severed, there is a real risk that a decision by one [defendant] might taint the jury’s view of another decision made by a different [defendant]. Trying Spaeth’s claims separately eliminates this risk, and offsets any prejudice arguments he raises."

February 16, 2012

A #judge takes A. #Breitbart to task in explaining why a #defamation lawsuit won't be stopped in its tracks.

In a terse, six-page "statement of reasons," U.S. District Judge Richard Leon spelled out why he would not dismiss a defamation lawsuit filed against Breitbart by Shirley Sherrod. Sherrod is the former Georgia-based Agriculture Department official who says Breitbart defamed her when he posted a selectively edited clip of her talking about racism.

Breitbart sought to get the case dismissed under D.C.'s anti-SLAPP law. Denied, he then demanded to know the reasons. At an appeals court direction, Judge Leon does so, with an occasional dig at Breitbart; adding, for instance, this:

"Regrettably, it appears that the defendants will not be satisfied with this court's ruling until a considerable amount of judicial and litigant resources are expended on its 'novel' if not overreaching motion."

In a decision that's intriguing both for its facts and for its law, the U.S. Court of Appeals for the Armed Forces kept alive the legal possibility that a suicide threat could potentially be an element in a duress defense. In other words, if Suits & Sentences has this right, a military member can raise a defense that he/she was compelled to act contrary to law in order to prevent a suicide.

However, the military appeals court also sided with the government, in reversing part of a lower court's decision that had set aside the finding of guilt. This case will get more consideration.

In 2010, Hayes was sentenced to one year in the brig for stealing about $28,000 worth of electronic lab equipment from the academy and selling it on eBay. Hayes pleaded guilty to larceny and loss or destruction of government property.

During his first year at the Academy, his mother would call and ask "if there was any way I could help out" since she was "short on money." By his junior year, Hayes was receiving "daily" phone calls from his mother saying that "she didn’t want to lose her house" and that it was his responsibility to help her because he was her eldest son. Hayes reported:

"It got to a point where she would -- she would call crying and -- and then say that she didn’t want to live any more and that she, you know, was thinking about taking her life...(I) didn’t know how to handle that."

As for the thefts, Hayes said:

"I was like, 'Well, my mom needs money, there’s all these extra things laying around.' I know itwasn’t right, but in my state of mind I just -- I just couldn’t differentiate the difference between doing the right thing for -- for home or doing the right thing that’s going to make the phone calls stop, or doing the right thing for being a Midshipman...

I used the money, and I’d go home every weekend, andwhether -- whatever my mom needed I was doing, whether it was just taking her out to dinner or taking all my brothers and sisters out for ice cream, I mean just being there. I’m not -- I didn’t know how to deal with somebody who’s threatening to end their life or threatening to, you know, not be there anymore."

February 10, 2012

A #patent dispute turned #lawsuit may finally be finished, 38 years after the patent application in question was first filed.

And it's big, very very big.

In a divided opinion Friday, the U.S. Court of Appeals for the Federal Circuit upheld a $371 million award against W. L. Gore & Associates. The court agreed that Gore, known for its' Gore-Tex material, had willfully infringed on a patent held by Bard Peripheral Vascular/C.R.Bard Inc. Moreover, an additional $19 million was awarded to Bard's attorneys, who at the federal circuit were led by Steven C. Cherny of Kirkland & Ellis.

With interest, royalties and fees, the amount owed Bard is upwards of $783 million, Bloomberg reported.

Everything about this case seems larger than life, from the money involved to the time it's taken. The patent application was filed October 24, 1974 and issued nearly twenty-eight years later on August 20, 2002. Not long after, litigation began. (Insert, here, obligatory literary reference to Jarndyce and Jarndyce,the endless legal dispute cited in Charles Dickens' novel Bleak House.)

The facts seem just as technical as you'd expect, involving "prosthetic vascular grafts" and the like, but Circuit Judge Arthur J. Gajarsa shows some verve in his writing, as in a footnote that states:

"We cannot revisit the facts anew, nor meander through the record and select facts like our favorite jelly beans, nor characterize the facts as the Bard would in a Shakespearean tragedy."

This last, BTW, is a sideways reference to the dissent by Circuit Judge Pauline Newman, which cites to the following from Measure for Measure:

We must not make a scarecrow of the law,Setting it up to fear the birds of prey,And let it keep one shape, till custom make itTheir perch and not their terror.

ABOUT THIS BLOG

"Suits & Sentences" is a legal affairs blog written by Michael Doyle, a reporter for McClatchy's Washington Bureau. He was a Knight Journalism Fellow at Yale Law School, where he earned a Master of Studies in Law; he also earned a Masters in Government from The Johns Hopkins University with a thesis on the Freedom of Information Act. He teaches journalism as an adjunct instructor at The George Washington University's School of Media and Public Affairs.